Posted on 10/23/2006 10:24:56 AM PDT by SmithL
To foot the bill for Mary and Lawrence Henkel's nursing home care, her children sold everything their parents owned except for the Donelson, TN home the couple had lived in since 1967.
"That was my father's dying wish - to hold onto the house, live in it, take care of it," said Nashville resident Judy Clifford, 66, one of three Henkel children. "That's what he told me, and he gave the house to me."
Now TennCare wants to sell the home to help recoup the roughly $288,000 that the state says it paid to take care of Mary Henkel in the nursing home before she died in February 2003 at the age of 81. Her husband had passed away years earlier.
The Henkel children, who value the home at $110,000, aren't alone. They're among families across the state being asked to give up the family home as TennCare redoubles its efforts to recoup some of the roughly $1 billion a year that the state pays for nursing home and other long-term care.
State officials say they're merely doing what is required by the federal government. And they point out that Tennessee isn't nearly as aggressive as some other states in recouping the money spent on long-term care.
"We're talking about a very emotional time in someone's life or in the family situation, and of course it's something that we wouldn't be unsympathetic to," said Marilyn Wilson, a spokeswoman for TennCare. "If we are going to provide Medicaid coverage, we must actively engage in estate recovery efforts."
It's a common practice for TennCare, the state's expanded Medicaid program, to go after the family homes of nursing home patients who have passed away. Generally, by the time a nursing home or long-term-care recipient gets on TennCare, the patient's family has spent down all of the family assets, except for the home.
TennCare tries to recover money when patients are 55 or older and received long-term care. It will not go after a property if a surviving spouse still lives in the house or a minor child or a child who is considered disabled by certain federal requirements lives there.
Bigger push
The state is stepping up its efforts to get properties on at least two fronts.
In April, TennCare hired an Atlanta-based outside consulting firm to help find properties that deceased long-term-care recipients passed on to their heirs without going through probate. And when it does find the property, it's going to force open an estate.
Under Tennessee law, the property can pass to the heirs without going through a probate court. But if TennCare finds out about the property, it can petition the court to force open an estate, which is what happened in the Henkel case.
The Tenncare Bureau also is looking to the state's highest courts to extend the time that it has to petition a court to get the property.
State law says all creditors have 12 months to file a claim on an estate.
Last month, Davidson County Probate Court Judge Randy Kennedy sided with another family in a fight over a home because he said TennCare waited too long to make a claim. The case was the first of several different ones in Nashville, including the Henkel case, in which TennCare forced open an estate more than 12 months after the patient died.
"We are going to appeal these cases, and the reason why is that of course both federal and state law requires that the state engage in estate recovery, and so as lawyers for the state we are duty-bound to assert all of the legal arguments available to us that support the right to recovery," said acting Attorney General Michael Moore. Moore, whose own mother is in a private nursing home, said he knew how exorbitant the cost of long-term care was.
TennCare argues that it shouldn't be bound by the statute of limitations because it involves public funds.
But experts in probate law disagree and say the one-year rule applies to TennCare.
"I don't know anybody who would disagree with Judge Kennedy's ruling," said Jeff Mobley, a Nashville attorney and an expert in probate. TennCare, he said, has asked the legislature in the past to extend the statute of limitations and is always asking for more ways to recover the money.
Paying for care
The money the Bureau recovers is only a tiny fraction of what the state pays into long-term care.
About 32,000 people on TennCare receive long-term care on any given day, spokeswoman Wilson said. On average, TennCare recoups $14 million a year of the money spent on that population. Last year, more than $1 billion of the program's overall $7 billion budget went toward long-term care.
The state generally has about 500 estate recovery cases per year, Wilson said. It's too early to gauge how successful the outside consultant will be in efforts to recover money.
Tennessee's estate recovery program is actually middle-of-the-road and nowhere near as aggressive as some states, Wilson said, specifically citing others that require nursing home patients to sell their property before they die.
But the practice of taking the family home still comes as a devastating blow to the children of the patients, one legal expert said.
"There is a sense of unfairness about it," said Tim Takacs, a Hendersonville attorney and expert on elder law. "People will come into the office here before Mama's on Medicaid and it's like, 'All she's got is this little house, and she lost her health, she lost her husband, she lost everything else, and now they want the house, too.' ''
Takacs thinks there should be an honest debate about what people should pay and what the government should pay.
He and Mobley, the probate lawyer, say people also need to do a much better job of planning for the high costs of long-term care and not wait until a family member is in a nursing home.
"We like to have people come in before they are in a crisis," Takacs said. "It's never too late to do something. It's just when they don't do anything, that's when they're likely to get an estate recovery claim."
Oh, and I meant to add that that will keep alot of us in FL who own what we consider pretty modest homes ineligible. However, I am lucky, my husband, because he is in the financial industry has always put aside, and we've done without alot of things, for retirement. We probably won't leave much to our kids, but we gave them all a good upbringing and a college education, so I don't feel like we owe them more than that. I would hope they will make it on their own, and not be counting on something from us.
susie
I know the answer to that one..............never! They are not required to repay one thin dime to the state, unless it goes to court and fraud was involved. Then that fraud payment back to the state is held out of their food stamp/welfare checks. No kidding!
Takacs thinks there should be an honest debate about what people should pay and what the government should pay.
Earth to Socialists: The government gets all its money from the the people!
You're right about the "if" matter needing to be addressed. But step one is allowing people to make their own decisions about when to die (inlcuding via advance directives). With assisted suicide outlawed, the remaining options are expensive long-term care and dying slowly and miserably, often in agonizing pain. Since few people are willing to go that way, or watch their relatives go that way, and few can actually pay for nursing home care out of pocket, they all vote for a socialist "solution".
Even if someone is conscious and able to make decisions, and chooses the slow miserable death route as preferable to wiping out the estate they wanted to pass on to their children, any relatives who are living with them or are aware of the situation are subject to criminal prosecution for not seeking medical care for the person who wants to die.
Long term supports for elderly and disabled only. Period.
>>Hardly [a different issue] if they're coming after $280,000 when the "real costs" are likely a fraction of that.
Exactly! If you could extrapolate from the state charging $40 for a pair of one dollar slippers, the free market might have that $280,000 bill trimmed to around $7,000.
Plus fewer people would be endorsing euthanasia. (A different issue? Not when you're the one in the bed!)
The assets were not those of the relatives. The offspring lived in the home, but it was still owned by Dad.
Also, should the state be able to take the assets of the taxpayers to pay for someone's care?
Carolyn
Precisely. The bulk of staff in a nursing home are low level "aide" types, who change the diapers on demented 80 year old, and other dismal tasks, and are overwhelmingly unionized. They are not willing to work for less than they're getting paid, and for the subset who are the sort of people you'd trust with grandma, I don't blame them -- in other worlds, quality of care is often below minimum civilized standards, but there is certainly no way to get care at the level of civilized standards for less than is being spent now. The government creates huge numbers of these jobs by declaring that everybody WILL have such care (whether they want it or not), and naturally this army of workers dutifully votes for the socialist politicians who keep thie system humming.
Un-freakin'-believable!! My tax dollars at work. Why do I bother going to work every day??
Yes, because, after all YOU shouldn't have to pay for your own care. We taxpayers have more than enough money to do it for you! :::eyeroll:::
All can be avoided by caring for our own parents rather than foisting them off on others . . . .
The mother could have turned the house over several years ago, as my mother.
It can't be done at the last minute, but it could have been done and her house would have not been the state's to take over.
So, your mother doesn't think her money should have to pay for her OWN health care?
Funny how some people who would NEVER take a dime in charity see no reason to pay for their own nursing home care.
You have to move it to the trust at least 60 months before qualifying for Medicaid assistance. If the elderly patient is granted a life estate in the property after it has been re-titled in a child/children - they will have an imputed value of the life estate added to their income for Medicaid qualifying purposes. Most elderly are reluctant to transfer the property to their children, and few have a visible planning horizon that extends out 60 months - so you seldom see this done properly. Illnesses emerge and put people into the nursing home decision relatively quickly. That's exactly why Congress chose the 5 year look-back period. Another important consideration is that the trust needs to be irrevocable. Either do some long term planning to avoid this - or buy private LTC insurance.
My mother turned over her assets 8 years ago.
She was killed in a car wreck 8 months ago.
So she never used the state for anything.
However, it still was a good plan of action.
I know!
And when they are in a nursing home, they don't get why care isn't what they think it should be.
Yet they have 24 our care, utilities paid for, food- including meals, supplements and snacks, linens provided, laundry, housekeeping, total assist with ADL's, Cable TV, activities, medications etc.
It's expensive! Yet folks don't want to pay for it.....weird.
This would be logical and fair to me **IF** state and feds agressively pursue illegals and force them to pay their medical bills. I do not in general think the taxpayers should pay for nursing home care until all of the persons assets including home are liquidated and used up. My feeling now is that as long as we are forced to pay for illegals to have free health care; then our citizen elderly should be able to receive free care also. I think the government should collect from all the illegals before they start in on citizens.
I do think if the government is going to take remaining assests upon the death of a nursing home patient or the surviving spouse then documents to that effect should be signed and in place when the person enters the care facility. Then the family has no complaint, they knew and signed ahead of time. A system like that would also make it easier for the government to collect the assests. If family wants to keep the family home; then they should have to buy it at fair market price when the parent goes into long term care.
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